International Criminal Law Assignment
Topic: Establishment, structure & Jurisdiction of
International Criminal Court (ICC) under
International Law.
Submitted To:
Mrs. Reena Azad
Faculty, International Criminal Law
Dr. B.R. Ambedkar National Law University
Submitted By:
Raghav Gupta
1901075
Section – B
Batch: 2019-2024
Dr. B.R. Ambedkar National Law University
ACKNOWLEDGEMENT
I would like to express my special thanks of gratitude to my professor and
mentor Mrs. Reena Azad who gave me the opportunity to work upon this
assignment on the topic ‘establishment, structure & Jurisdiction of
International Criminal Court (ICC) under international law’, which helped
me in doing a lot of research and i came to know about so many new things
I would also like to thank my friends who helped me a lot in finishing this
project within the limited time.
Establishment, structure & Jurisdiction of International
Criminal Court (ICC) under International Law.
BACKGROUND OF INTERNATIONAL CRIMINAL COURT
The Statute of the International Criminal Court (ICC) was adopted, in Rome on 17 July
1998 as the result of an international diplomatic conference organized under the aegis of
the United Nations (UN). The Rome Statute entered into force on 1 July 2002 following its
ratification by 60 States. The Court has its seat in The Hague in the Netherlands and
started functioning in March 2003 when the Prosecutor, judges, and registrar were
appointed.
As of October 2023, 124 States have ratified the Rome Statute. However, two countries
have withdrawn from the ICC: Burundi (withdrawal effective on October 2017) and the
Philippines (withdrawal effective on 17 March 2019), while two others had notified of
their decision to withdraw but later revoked it: South Africa (notification made on 19
October 2016 and revoked on 7 March 2017) and The Gambia (notification made on10
November 2016 and revoked on 10 February 2017).
The ICC is the first permanent international criminal tribunal having jurisdiction over
individuals accused of the crime of genocide, war crimes, crimes against humanity, and
the crime of aggression (art. 5 of the Rome Statute).
The ICC should not be confused with the International Court of Justice (ICJ), which was
created by the UN Charter in 1945 to adjudicate on legal disputes between States and is
also based in The Hague.
The idea of establishing a permanent international criminal court was first considered
after the Nuremberg trials held under the International Military Tribunal (IMT)
established after the Second World War in 1945 but States failed to agree until 1998.
The Rome Statute was adopted with the aim of filling the gap left since the Second World
War in the international community’s ability to prosecute and punish the perpetrators of
the most serious crimes. It builds on the experience of the two ad hoc International
Criminal Tribunals established by the UN Security Council (UNSC) resolutions to
prosecute crimes committed in the former Yugoslavia (ICTY) (operational from 1993
through 2017) and in Rwanda (ICTR) (operational from 1994 through 2015).
However, contrary to the ICTY’s and ICTR’s jurisdictions, the ICC does not have primacy
over national criminal jurisdictions but rather is complementary to domestic prosecution.
The ICC can initiate proceedings only if the State in question is “unwilling or unable
genuinely to carry out the investigation or prosecution” (art. 17 of the Rome Statute). This
means that if a national legal entity is carrying out such proceedings, the ICC may not act
unless it can prove that the proceedings are not being carried out in good faith (explained
further in Section IV). The aim of this approach is to incentivise States to carry out their
own prosecutions whenever possible.
The jurisdiction of the ICC over these crimes remains subordinated to the condition of
State consent through a ratification process and special conditions depending on the
nature of crime ( infra , section III).
Whether a case involves genocide, war crimes or crimes against humanity, the Court can
only investigate the crimes if either the State of nationality of the person accused or the
State on whose territory the crime was committed has accepted the ICC’s jurisdiction (art.
12 of the Rome Statute). The absence of any reference to the State of nationality of the
victim or of the State where the accused is located has limited the Court’s ability to
investigate situations of non-international armed conflicts since the State of nationality
of the accused and the State where the crime was committed are the same.
With respect to the crime of aggression, the ICC’s theoretical jurisdiction has only been
effective since 17 July 2018, and the entry into force of the relevant amendments to the
Rome Statute. However, the ICC’s jurisdiction over the crime of aggression remains
optional for States Parties and is subject to restrictive conditions that differ from those
applicable to the Court’s jurisdiction over other international crimes.
The UNSC has a high degree of authority over the jurisdiction of the ICC. It is the only body
that can bypass the requirement of State consent, as it can impose ICC jurisdiction on any
State, provided that none of its five permanent members vetoes the decision. The UNSC
can also defer or prohibit the commencement or continuation of an investigation or
prosecution for one year, which can be extended indefinitely (art. 16 of the Rome Statute).
The special privileges granted by the Rome Statute to the UNSC reflect the hybrid nature
of the ICC as an independent judicial body on the one hand and as an instrument of
international conflict management on the other. This has led to uncomfortable and
confusing situations of selective enforcement of international justice. The politicisation of
the Initial referral of a case can be exacerbated by the Prosecutor’s dependence on
evidence provided by States. But it can also be mitigated by the judges who require strict
adherence to due process and high standards of evidence in the investigation and
prosecution phases, even if this leads to the acquittal of suspects.
Despite these constraints, the ICC represents a step forward in the consolidation and
implementation of international criminal law. It is an important step towards unifying the
definition of international crimes and bringing together the world’s diverse legal systems
and standards of criminal investigation, fair trial and due process. By promoting
complementarity of jurisdiction between the ICC and national courts over commonly
defined international crimes, it also strengthened the application of the principle of
universal jurisdiction, which allows national courts to prosecute perpetrators of mass
crimes committed abroad. The number of countries that have ratified the Rome Statute
has disproved the pessimists’ predictions. It shows that the ICC is seen as a protective
instrument for those numerous countries that cannot rely on their super military power.
The structure and organisation of the ICC reflects Its mixed international and judicial
nature (II) and defines the role of the various organs and their respective powers in the
concrete exercise of the ICC’s jurisdiction over the different situations and types of crimes
(III). The relationship between States and the ICC is reflected (IV) and is complemented
for the first time by the special status accorded to victims and witnesses including the
recognition of victims’ right to reparation (V). Throughout its 20 years of existence, the
ICC Prosecutor and Judges have navigated between the limitations of the Rome Statute
and the expectations of victims. This is reflected both in the number of situations and
cases brought before the ICC, but also in the many challenges and shortcomings
associated with their Investigation or adjudication by the ICC (VI). Despite the failures
and frustrations, the work of the ICC is contributing to the emergence of international
jurisprudence, consolidating the learning process of international criminal justice in
relation to mass crimes and disseminating common standards at the national level. ( infra
, Jurisprudence, see end of section).
STRUCTURE AND ORGANIZATION OF THE ICC
The ICC is made up of several principal organs: (1) the Assembly of State Parties (ASP)
(2) the Office of the Prosecutor (OTP), (3) the judicial Divisions and Chambers (Appeals,
Trial and Pre-Trial), (4) the Registry, and (5) the Presidency (art. 34 of the Rome Statute).
The ICC’s funding (€173.234 million in the 2023 proposed budget) comes from fixed
contributions made by States Parties, funds provided by the UN, and voluntary
contributions from governments, international organizations, individuals, corporations,
and other entities in accordance with specific criteria (arts. 115 and 116 of the Rome
Statute).
1) The Assembly of State Parties (ASP)
The specificity of the ICC is reflected in the existence of an additional body in which each
State Party has one representative. Created by article 112 of the Rome Statute, the ASP
plays an important role in guiding and supporting the functioning of the Court.
In particular, it is the Assembly, and not the Court itself, that is responsible for adopting
two key procedural documents: the Rules of Procedure and Evidence and the Elements of
Crimes .
The ASP is also the body responsible for electing the Prosecutor and Judges and for
approving the budget. It is also responsible for supervising the Presidency, the Prosecutor,
and the Registry with regards to the administration of the Court including its budget; and
for examining any matter relating to the non-cooperation of States.
2) Office of the Prosecutor (OTP)
As of 12 February 2021, the ICC Prosecutor is Karim A. A. Khan. He succeeded Fatou
Bensouda of The Gambia. The OTP is “responsible for receiving referrals and any
substantiated information on crimes within the jurisdiction of the Court, for examining
them, and for conducting investigations and prosecutions before the Court” (art. 42 of the
Rome Statute).
The Prosecutor Is elected for a non-renewable nine-year term by an absolute majority of
the members of the ASP. He or she may be assisted by one or more deputy Prosecutors,
who are elected in the same way from a list of candidates provided by the Prosecutor.
The Prosecutor and the deputy (or deputies) are fully independent and must all be of
different nationalities. They must be persons of high moral character, be highly
competent, and have extensive experience with criminal matters. They may not engage in
any other professional occupation while exercising the function of ICC Prosecutor or
deputy.
The Prosecutor may appoint the staff necessary for the performance of his or her duties,
including advisers and investigators.
The OTP investigate cases or situations that have been referred either by a State Parties
(art. 14 of the Rome Statute) or by the UNSC (art. 13 of the Rome Statute). Under certain
circumstances, the Prosecutor may also launch an investigation on his or her own
initiative ( proprio motu ), on the basis of information received from diverse sources,
concerning crimes within the jurisdiction of the Court (art. 15 of the Rome Statute).
In such cases, if the Prosecutor concludes that there is a reasonable basis to proceed with
an investigation, he or she must request authorization from the Pre-Trial Chamber to
officially open a case. Pending the Pre-Trial Chamber’s ruling, the Prosecutor may only,
“on an exceptional basis, seek authority from the Pre-Trial Chamber to pursue necessary
investigative steps for the purpose of preserving evidence” if there is an opportunity to
obtain important evidence, or if there is a risk that such evidence may not be available
subsequently (art. 18(6) of the Rome Statute).
The Prosecutor may “seek additional information from states, organs of the UN,
intergovernmental or non-governmental organizations, or other reliable sources that he
or she deems appropriate, and may receive written or oral testimony” (Art. 15(2) of the
Rome Statute). (see infra , Section III.1 and Section VI).
3) The Chambers and Judges
The judicial organ of the ICC is composed of 18 judges, divided into the different
Chambers (Pre-Trial, Trial and Appeals). The judges are elected by the ASP from the list
of candidates presented by the States Parties (art. 36 of the Rome Statute). They are
chosen from among persons of high moral character, impartiality, and integrity, who
possess the qualifications required in their respective States for appointment to the
highest judicial offices. They must be competent in relevant areas of international law,
such as international humanitarian law or human rights law, and have the necessary
relevant experience in criminal law and procedure.
In selecting the judges, States Parties must consider the need for the representation of the
principal legal systems of the world, equitable geographic representation, and fair gender
representation. Judges will hold office for a maximum full term of nine years (except to
enable them to conclude any trial or appeal they conducted and for which the hearing has
already commenced during their term), and they may not be re-elected. They may not
engage in any other professional occupation.
The judges are divided into three divisions, whose judicial functions are carried out by
three Chambers (art. 39 of the Rome Statute):
• The Appeals Division is composed of the president and four judges; the Appeals
Chamber is composed of all the judges of the Division.
• The Trial Division is composed of not less than six judges; the Trial Chamber is
composed of three of the judges from this Division.
• The Pre-Trial Division is composed of not less than six judges; the composition of the
Pre-Trial Chamber is composed of three judges or a single judge of that Division in
accordance with the Rules of Procedure and Evidence .
The Statute provides for the possibility of having more than one Trial or Pre-Trial
Chambers operating simultaneously when the Court’s workload so requires (art. 39(2)©
of the Rome Statute).
4) The Registry
The Registry is the administrative organ of the ICC. It is responsible for the non-judicial
aspects of the administration and servicing of the Court (art. 43 of the Rome Statute). The
registrar is elected by an absolute majority of the judges for a five-year term, open for re-
election once. He or she may have a deputy registrar, if needed, who is elected in the same
manner. The registrar exercises his or her functions under the authority of the president
of the court. The registrar’s responsibilities include the establishment of a Victims and
Witnesses Unit (art. 43(6) of the Rome Statute) that is in charge of assisting victims and
witnesses who appear before the Court and others who are at risk on account of
testimony given by such witnesses —namely, their families. The Unit provides for
protective measures, security arrangements, counselling, and other appropriate
assistance.
5) The Presidency
Three judges are elected by an absolute majority of judges to the offices of President and
first and second vice Presidents, for three-year terms. They can be re-elected once. The
Presidency is responsible for the proper administration of the Court and any other
function conferred on it in accordance with the Rome Statute (art. 38).
JURISDICTION OF ICC
Article 5 of the Rome Statute lists the crimes within the jurisdiction of the Court:
• The crime of genocide (defined in art. 6)
• Crimes against humanity (defined in art. 7)
• War crimes (defined in art. 8)
The definition of the ICC covers crimes committed in international armed conflicts that
were already listed in IHL as well as crimes committed in non-international armed
conflicts that were not yet covered by previous international conventions. However, when
ratifying the Rome Statute, States have the possibility of opting out of the Court’s
jurisdiction over war crimes for a non-renewable period of seven years (art. 124 of the
Rome Statute).
The Rome Statute provides that the exercise of the Court’s jurisdiction may be triggered
in three different ways. A State Party (art. 14 of the Rome Statute) or the UNSC (art. 13 of
the Rome Statute) can refers a situation to the Prosecutor. The Prosecutor (art. 15 of the
Rome Statute) may also trigger the ICC’s jurisdiction proprio motu , meaning on his or her
own initiative, subject to control by the Pre-Trial Chamber. However, as previously
explained, if a State Party or the Prosecutor refers a situation to the ICC, there is a
precondition to the Court’s exercise of jurisdiction: either the State of nationality of the
accused or the State where the crime was committed must be a party to the Rome Statute.
Only a referral by the UNSC overrides this constraint (art. 13 of the Rome Statute). It is
also possible for a State that is not a party to the Rome Statute but is either the State of
nationality of the accused or the State where the crime was committeed, to accept the
jurisdiction of the ICC with respect to a case, on an ad hoc basis, in which case the State in
question must agree to cooperate fully with the Court (art. 12 of the Rome Statute).
However, even when the Court’s jurisdiction is being exercised, the UNSC has the right to
suspend the Court’s investigation or prosecution for a period of 12 months. This
suspension requires the adoption of a UNSC resolution under Chapter VII of the UN
Charter, which deal with the management of international security. Such deferral may be
renewed in the same form indefinitely (art. 16 of the Rome Statute).
In addition to investigating cases or situations formally referred to the Court the OTP may
also conduct preliminary examinations on its own initiative in a number of situations of
concern.
The ICC is also conducting three preliminary examinations in: Nigeria (since 2010), and
for other cases concerning Venezuela (since 2014) and the DRC (since 2022). Given the
existence of three different channels of referral to the ICC, it is worth noting how each of
them has been used in relation to the various cases in progress. As of October 2023, the
following States have referred their cases directly to the ICC: Uganda in 2003 was the first
State to refer a situation on its own territory. It was followed by the DRC in 2004 which
later (June 2023) referred another case to the ICC regarding alleged crimes committed in
its North Kivu region in 2022. Then, the following countries also referred their cases to
the ICC: Central African Republic in 2005 and 2014, Mali in 2012, Comoros in 2013 and
Gabon in 2016.
